Here is a recent filing in the United States District Court for the Southern District of West Virginia. It has to be one of the oddest things I have ever done in the realm of criminal defense. Most lawyers know that a civil case in state court can be removed by the defendant(s) in certain circumstances. In fact, most plaintiffs lawyers in West Virginia, usually myself included, do everything they can to avoid such a scenario. But did you know that in certain instances, state criminal prosecutions can be removed to federal court? Well it’s true. Similar to being a plaintiff in the 4th Circuit, usually it would be a really bad idea to handle a criminal case in federal court rather than in state court. Defendants almost always get hammered in federal criminal prosecutions. But conceivably there are situations where you do want to be in federal court – especially one in which state court officials (e.g., prosecutors/magistrate judges) have formed a lynch mob and are going after your client.
28 U.S.C. 1442(a)(1) is known as the federal officer removal statute, and allows state court cases of almost any sort to be removed (forcibly) to federal court. It is usually used in civil cases. For instance, if you were to try to sue an FBI agent in state court, it would quickly make its way to federal court using this removal statute, and it would be there about 5 seconds before being dismissed. But 1442(a)(1) also allows for state criminal prosecutions to be removed. It has rarely been used, mostly because scenarios which would invoke it rarely occur. It requires that a federal officer be charged with a crime in state court, and that he or she have a colorable federal defense (usually federal immunity) to the charge.
In our scenario, my client does indeed have a colorable federal defense – LEOSA (Law Enforcement Officers Safety Act). Passed in 2004, it allows current or required qualified law enforcement officers to carry concealed weapons notwithstanding any state or local laws to the contrary. My client is a federal law enforcement officer and was charged with carrying a concealed weapon. The arresting state cop and the state prosecutors have claimed complete ignorance of the federal law. And since it is a misdemeanor, it has been in the West Virginia magistrate court system, which in this case at least, equaled complete ignorance and disregard for federal law. Using 1442(a)(1) I was able to file a Notice of Removal in federal court, which barring a remand by the federal judge, will completely divest the state courts from jurisdiction over the prosecution.
Between the civil lawsuit we filed over this, and the protracted criminal litigation (which is on its way to a state record for volume of misdemeanor litigation) it is mind numbing that state prosecutors and law enforcement would dedicate so many resources and expenses in order to secure a misdemeanor conviction on one person. Beware, cross your local authorities and you could be next.
As I was writing the post yesterday about the downward trend in West Virginia misdemeanor sentencing, I was thinking, well what about felony sentencing? The same principles apply. Why fill up our prisons – at our cost – for property crimes and other non-violent offenders. What’s the point? With all the federal civil rights requirements, we have to provide inmates with medical care, etc. With the perpetrators in prison, the victims aren’t getting any restitution anyways. It’s a lose-lose-lose situation.
Today the Register-Herald had just such an article on this topic, titled “WVU examining prison sentencing: Researchers looking at ways to ease overcrowding in jails.” It quoted senators Kessler and Chafin, both of whom are lawyers:
Back when he was handling criminal law, Chafin recalled how a defendant in court for a property crime likely could have avoided a prison stretch.
But when the victim and his family appeared in court, the sitting judge clearly was moved and came down hard on the defendant, the senator said.
“First thing you know, the guy’s locked up one to 10 and really didn’t need to go,” Chafin said.
Kessler discussed the increase of punishments for many of West Virginia’s criminal statutes:
Within the past decade, Kessler pointed out afterward, the Legislature has raised penalties on two to three dozen statutes, often in response to a sensational crime given voluminous media attention.
“It seems that we do it piecemeal often times in knee-jerk reaction to some type of crime that happens in our communities that gets a lot of headlines,” he said.
“So we go out and double the penalties on those.”
Basically, WVU will be conducting research, and in the end, hopefully someone in the state legislature will be promoting reform with the goal of reducing the state prison population. Mainly this can be done through the decrease of penalty ranges for common property-type crimes, and the promotion and creation of other forms of alternative sentencing. But in the end, we will always have the problem of circuit judges facing reelection, and the goal of reducing prison population will never be an election-winner. Maybe we should also reform the selection procedures for circuit judges, and take politics out of the equation.
- John H. Bryan, West Virginia Attorney
Today the Senate Judiciary Committee of the West Virginia Legislature is hearing evidence on proposed legislation that would reign in the WV Division of Motor Vehicles and their rampant disregard for the due process of rights of those accused of DUI in West Virginia. The Charleston Gazette had an article this morning on the hearings. In West Virginia, DUI charges take two different routes: a criminal action against the defendant personally, and then a civil action against the accused’ driver’s license. In these civil hearings, there is a notorious lack of fairness and due process rights accorded to the driver. The proposed legislation attempts to create more fairness in the process. Though extremely late notice was given regarding today’s hearing, several criminal defense attorneys from around the state who defend DUI’s in West Virginia, have been invited to speak to the committee. Let’s wish them luck and encourage the Legislature to enact this legislation.
We should always err on the side of freedom and liberty – and never on the side of tyranny. Besides, less government is always better….
- John H. Bryan, West Virginia Attorney.
On Friday, the US Supreme Court settled an argument that had been raging for decades: does the 2nd amendment apply to individuals, or does it apply to “well regulated militia’s”? Thankfully, the Supreme Court got it right this time. West Virginians know this better than anyone else: you can’t depend on the police to wake up, take a shower, and drive thirty minutes to your house to protect you from danger. You have to be able to protect yourself and your family.
What still makes me sick, is that some guy (or gal) convicted of some stupid non-violent felony that has nothing to do with guns, will never be able to own a gun. What about his children? Should they be at the mercy of some armed intruder who is aware of the fact that they cannot protect themselves? Should they be required to die because some bleeding-heart know-it-all is anti-gun?
For a great analysis of this recent Supreme Court decision, take a look at this post from the South Carolina Criminal Defense Blog, by Bobby Frederick.
– John H. Bryan, West Virginia Attorney.
I reported on the new West Virginia DUI statute in a previous post, which can be found here. I previously reported that the effective date would be June 1, 2008. From what I have heard from other attorneys, and from the WV Supreme Court, the effective date will actually be June 6, 2008.
This means that if you get arrested for DUI on or after June 6, 2008, then the new law will govern your case.
– John H. Bryan, West Virginia Attorney.
From the Charleston Daily Mail:
A Montcalm High School teacher accused of having a relationship with a student faces sexual abuse and abduction charges.
State Police First Sgt. Gary Tincher says 30-year-old Christi Lee Williams was arrested in late April.
Williams remains free on bond after being charged with sexual abuse by a parent, custodian and guardian and abduction of a student within 1,000 feet of a school.
Tincher says Williams is accused of having a relationship with a 16-year-old male student who allegedly left school property with her.
Tincher says the teacher has been suspended from her job.
What is the deal with young, attractive teachers across the country having these sexual relationships with young boys? I can’t remember hearing anything like this when I was in high school – other than in a Van Halen song.
Let’s look at the charges: First, abduction of a student within 1,000 feet of a school. Okay, that charge is garbage. The kid was 16 – old enough to drive, and actually 16 is the age of consent. The allegations are that he went willingly. Prosecutors and legislators can make up whatever law and charges they want, but the fact is that there was no abduction. This is just a garbage charge to help them get a plea.
Secondly, sexual abuse by a parent guardian or custodian. This is the most abused and misused charge on the books. The reason is this: in almost every situation, like it or not, the legal age of consent in West Virginia is 16 years old. That means that ignoring relationships, this 16 year old kid can have sexual relations with whomever he wants. However, if there is a relationship, then all of a sudden the other party goes to prison for 10 to 20 years. That’s right, that is the punishment for this charge (something that you are not allowed to tell the jury). So, if the prosecutor alleges the other party is a babysitter, teacher, whatever – even if the kid is 16 or 17 and has his own car and drives all over the place, it then becomes punishable by 10 to 20 years. This is an abuse of the law. The charge was meant to cover awful situations where parents or actual guardians abuse children under their care. The problem is that the statute was written much to broadly, thus allowing police and prosectors to abuse it. For instance, this woman is facing 10 to 20 on that charge. Under the statute, technically, she can be convicted on it. The jury never gets to know that she will get 10 to 20. They will assume she will get probation, or maybe 6 months or a year. She will get convicted on the charge, despite the unfairness of it. The end result is, that her lawyer will most likely advise her not to take the chance of going to trial, and to accept the plea offer of misdemeanor battery with a sexual motivation, or something like that, which will put her in jail for a year and make her a registered sex offender for life.
Read the full article here.
– John H. Bryan, West Virginia Attorney.
From the Register-Herald today, the full article for which can be found here.
West Virginia Governor Joe Manchin signed the “Castle Doctrine” bill, which provides that residents may use deadly force to repel an intruder or avert a felony crime in the making on one’s property, and it allows such actions to be used as a defense in potential civil litigation.
The name “Castle Doctrine” and the basic theory is the product of a medieval English custom that held a man’s house is his castle, and the wind, but not the king, may enter.
Manchin stated that “Every person’s home is a castle, and every person’s family member is a royal family member.” Senate Majority Whip Billy Wayne Bailey, D-Wyoming, said he considered the measure long overdue.
“It’s part of our culture,” he said. “We’re just codifying in law what is the culture of West Virginia, that a person has a right to defend family and property, even with deadly force. That’s part of culture, without being sued and dragged off to prison. We did quite well on this.”
Manchin agreed, saying, “I think we’ve always felt that. We just now made it legal.”
– John H. Bryan, West Virginia Attorney.
From the Register-Herald:
Drunk drivers with .15+ BAC to face harsher penalties June 1
Law also erases mandatory 24-hour lockup, can reduce license suspension to 15 days
By Mannix Porterfield
A year-long movement to punish drunken motorists with a blood alcohol content of .15 or higher with harsher penalties and encourage others to use an Interlock before they can start a vehicle becomes law in June.
Gov. Joe Manchin made it official Tuesday by signing SB535, the result of an intense research and lobbying effort by Mothers Against Drunk Drivers in West Virginia.
With West Virginia’s passage of the revised DUI statute, only 11 states are without a law that creates the “aggravated” crime of operating a motor vehicle with a BAC of .15 or higher.
Another feature allows first-time offenders blowing a BAC of less than that level to have their licenses reinstated in 15 days, in lieu of the standard 30-day suspension, provided they install an Interlock, a device that prevents an ignition from starting if alcohol is detected when the driver blows into it.
A third element erases the mandatory 24-hour lockup for those with a BAC under .15, thus saving cities and counties some money on inmates sent to regional jails.
“We are very happy to see this finally come to fruition,” MADD’s state director, Donna Hawkins, said Tuesday after Manchin’s decision was announced.
“Very much so. I think it’s going to save lives. It’s definitely going to be a very positive law for West Virginia.”
In the House of Delegates, all provisions were retained, except for one in the Senate version that called for mandatory BAC tests on suspected drunken drivers in accidents that result in deaths or serious injuries.
Sen. Dan Foster, D-Kanawha, a Charleston surgeon and the chief sponsor of the Senate version, had no difficulties accepting this single change in his proposal.
For aggravated DUI, the mandatory penalty calls for two days to six months in jail. Hawkins said her group wanted to focus on this key provision in going after motorists with higher blood alcohol levels since they are responsible for the most carnage.
Two years ago, the most recent one for which statistics are available, drunken drivers caused 129 deaths and were blamed in accidents causing 2,600 non-fatal injuries.
Hawkins said the movement led chiefly by MADD began across the nation about a decade ago to crack down on motorists in an aggravated DUI category.
For most of last year, Hawkins personally led a series of meetings as director of an ad hoc committee of lawmakers, prosecutors, police officials and the Division of Motor Vehicles, working in tandem with a legislative interims panel.
“There were a lot of meetings, a lot of hours,” she said.
MADD was a chief proponent in lowering the BAC from the old standard of .10 to .08 to be declared intoxicated.
Manchin plans to conduct a ceremony April 10 with MADD officials, including its national director, Glynn Birch, and Hawkins.
In advance of the bill formally becoming law, Hawkins plans to tour the state to meet with law enforcement and DMV officials, raising public awareness about it and demonstrating how the Interlocks work.
“We’re going into different communities and talk about this new law and what it’s going to do,” she said.
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From the Beckley Register-Herald:
Manchin intends to sign ‘castle doctrine’
CHARLESTON — When the National Rifle Association comes calling at the West Virginia Capitol with legislation in mind, it helps that the nation’s leading hunting and Second Amendment advocate has an ally in the Governor’s Mansion.
Such is the case with the NRA’s chief legislative goal this year — the so-called “castle doctrine” bill.
Gov. Joe Manchin is a lifetime NRA member and intends to sign the measure, which garnered nearly unanimous support in the Legislature, provided there are no legal foul-ups in the bill.
Twenty other states have enacted similar proposals that expand a homeowner’s right to protect hearth and home by using deadly force, if needed, to thwart a prowler.
And exercising such action isn’t limited indoors, either.
If an invader is about to commit a felony outside one’s home, force likewise is justified in the proposed law.
The key element in the NRA-backed bill, sponsored chiefly by Sen. Shirley Love, D-Fayette, is to provide a homeowner with protection in court if an intruder or his family brings a lawsuit after a violent confrontation. This bill says a property owner can use the burglar’s presence as “a full and complete” defense for using deadly force.
Florida became the first state to enact the castle doctrine, named after an old concept in English law that held a man’s home is his castle, and the wind, but not the king or, in modern application, a burglar, may not enter.
Manchin is on board with the legislation, first off because the Legislature overwhelmingly backed it. Only Delegate John Doyle, D-Jefferson, opposed it in either chamber.
“We respect their decision,” communications director Lara Ramsburg said Wednesday of Manchin’s attitude toward legislation approved with landslide support.
A similar bill died in the House Judiciary Committee a year ago in the final week of the session. This one focuses on protection in lawsuits since West Virginia has never obligated a potential crime victim to retreat in the face of an adversary inside one’s domicile.
More importantly, however, is Manchin’s approval of the idea of safeguarding one’s home with protections afforded by the law, Ramsburg said.
“It is a concept that he supports in terms of protecting your own home,” Ramsburg said.
So far, the bill hasn’t arrived at the governor’s office.
“As always, our responsibility when we receive a bill, our legal staff looks at it to make sure it’s legally sound and there are no technical issues. Short of that, he intends to sign it.”
From the Beckley Register-Herald:
House geared to vote on amended DUI bill
CHARLESTON — A proposed update in West Virginia’s drunken driving law exited a key House panel with one alteration that proponents say is acceptable.
Omitted was a provision in the Senate version that would have mandated blood alcohol tests of any motorist suspected of being drunk after a fatal highway accident.
Donna Hawkins, head of Mothers Against Drunk Driving in West Virginia who spearheaded the legislation, wanted to see the Senate bill left intact.
But Hawkins said Wednesday she was assured by House Judiciary Chairwoman Carrie Webster, D-Kanawha, that she would draft a bill for the 2009 session to deal with such testing.
A House vote on the revised bill is expected Friday.
“I have no problem with it,” Sen. Dan Foster, D-Kanawha, said.
Foster was pleased the House panel didn’t tamper with the major components, led by a new offense of “aggravated DUI” for motorists with a BAC of .15 or above. For them, Interlocks attached to vehicles to test a driver’s breath for alcohol would be mandatory.
First-time offenders would have the option of using Interlocks, and the incentive built in the measure would cut in half their license suspension from the existing 30-day period.
A third key element eliminates the mandatory 24-hour lockup for first-time offenders with a BAC of .08 to .149 as a cost-cutting step for counties, many of which are struggling to pay regional jail costs.
Existing practice allows counties to be charged the per diem rate of $48.50 (due to be cut by 97 cents in July) twice since an offender can be jailed a few hours, then returned after going before a magistrate.
Jail costs are swallowing up much of some county budgets. Last year, for instance, Raleigh County was billed more than $2.5 million for keeping inmates at Southern Regional Jail.
“The main points of our legislation are in there,” said Foster, who worked closely most of last year with an ad hoc committee anchored by Hawkins while lawmakers prepared a bill in tandem during the interims.
“I’m convinced it will save lives. And also, it will save resources for the state as well. It’s a good combination.”
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